The Chief Justice at oral argument in Fisher

Posted Thu, October 11th, 2012 9:50 am by Tejinder Singh

After Chief Justice John Roberts broke ranks with his conservative colleagues to uphold the Affordable Care Act in National Federation of Independent Business v. Sebelius, Court watchers pondered whether the opinion in that case might be the first of many liberal decisions from the Chief Justice. Yesterday’s argument in Fisher v. University of Texas may put the speculation to rest for a long time, if not for good: the Chief Justice at least strongly signaled his hostility toward the University of Texas’s affirmative action program, and he was not shy about it.

As Bert Rein, representing petitioner Abigail Fisher, made his case against the University’s consideration of race in its undergraduate admissions program, the Chief Justice stayed mostly quiet. He asked only one question, which was to clarify a statistic. He also perked up considerably when Rein argued that the Texas program fails strict scrutiny because it is not narrowly tailored. Foreshadowing what was to become a core theme of today’s argument, Rein contended that the University of Texas had failed to articulate what a “crucial mass” of minorities on campus would look like, and he observed that “if you think about narrow tailoring, you can’t tailor to the unknown.” Chief Justice Roberts visibly lifted his head at that before jotting some notes to himself – he seemed pleased to hear the point made in sound-bite form.

In contrast with his passive response to Rein’s presentation, Roberts pressed Gregory Garre, counsel for the University (and his former colleague at the law firm of Hogan & Hartson, now HoganLovells, in the 1990s). He began by asking whether somebody who is only one-quarter Hispanic, or even one-eighth Hispanic, could claim that ethnicity at the University. He continued to express concerns about the University’s methods for identifying minorities, staging a duet with Justice Scalia on the subject that suggested that the University was not being sufficiently objective in its data collection.

The Chief Justice also led the charge on the critical mass point, asking: “What is the critical mass of African Americans and Hispanics at the university that you are working toward?” When Garre responded that the University did not have a specific number in mind, Roberts pressed the point: “So how are we supposed to tell whether this plan is narrowly tailored to that goal?” The Chief Justice continued to beat that drum throughout Garre’s presentation – as well as that of Solicitor General Donald Verrilli – arguing on multiple occasions that under the Court’s precedent, judges are charged with evaluating a university’s progress toward critical mass and cannot engage in meaningful judicial oversight unless that goal is well defined.

The Chief Justice was likewise hostile to other aspects of the university’s argument. He suggested that the university’s holistic admissions process might be little more than a smokescreen for racial preferences, noting to both Garre and Verrilli that “race is the only one of your holistic factors that appears on the cover of every application.” And he was dismissive of the university’s objection to Ms. Fisher’s standing, stating that the University had raised the point only in a single footnote of its brief.

Of course, the Term ahead will provide many more opportunities for the Chief Justice to signal his sympathies. But yesterday’s argument undermines the theory that Chief Justice Roberts switched teams for good. In all likelihood, he is a safe vote for Ms. Fisher.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.